Justified or Pernicious Limits? New Judicial Curbs Draw Fire

By
Robert Marquand, Staff writer of The Christian Science Monitor /
November 15, 1996

BOSTON

In recent months, Congress has quietly passed a broad series of laws that restrict federal judges in ways not seen since the Civil War era.

Championed by conservatives on Capitol Hill and agreed to by a White House that is moving to the political center, the new curbs on judges are aimed mainly at unpopular groups, such as prisoners and immigrants, by blocking their ability to make legal claims and to be heard by a federal judge.

"This is the first time court- stripping laws have actually gone into effect," says Lawrence Yackle of the Boston University School of Law. "It's not something to ignore. People may not see the importance of an independent judiciary in the abstract, especially when it comes to unpopular groups like criminals. But the fact is, we have these courts to hold other branches of the system in check."

Supporters say the practical problems of everyday law enforcement, including a blizzard of legal petitions by prisoners and immigrants, make the new laws imperative. "The federal courts have become a prison litigation forum. We have to get practical about what we expect federal judges to do," says Paul McNulty, chief counsel to the House Subcommittee on Crime. "They only have so many resources."

Since April, federal judges' ability to review death row inmate claims, known as habeas corpus, has been cut back. So has judges' capacity to remedy prison conditions such as overcrowding and brutality; judges' ability to appoint a "court master" to oversee prison reforms is dramatically restricted (two-thirds of the prisons in some states are under court observance).

Moreover, in an unprecedented move this fall, Congress singled out the Immigration and Naturalization Service (INS) and made its decisions virtually unreviewable by federal judges - in order to more speedily deport noncitizens regarded as undesirable. For many civil libertarians, that was the coup de grce. Some 90 legal scholars and the American Bar Association protested in separate letters to Congress and the White House, saying the new laws on judges were "exceptional in their scope," and threaten "the most basic safeguards of due process...."

Curbing the power of federal courts has long been a gleam in the eye of many judicial conservatives. They feel the streams of US justice have been clogged by frivolous and exploitative law suits. But at a deeper level they expound a judicial philosophy, now strongly made by such figures as conservative Robert Bork, that federal judges have garnered too much power in recent decades by creating new individual rights.

Still, despite efforts in the 1960s to bypass court-ordered busing, and in the early 1980s, amid thunderous national debate, to overturn abortion and school prayer rulings - attempts to limit the role of federal judges were always blocked by bipartisan coalitions of leading Democratic and Republican senators.

The latest reforms, however, drew little media attention. They were attached to larger bills; in some cases, critical changes were made without hearings.

Some scholars suggest that Congress and the White House allowed the laws through as a merely symbolic "get tough on crime" gesture - at the expense of groups that have little popularity or clout.

"It looks like these laws do something but they actually don't do much," says Mark Tushnet of Georgetown University. "The problem is whether judges will later take these statutes at face value, will take them seriously. If so, some basic rights are going to be violated."

At least one party taking the statutes seriously is the US government. This fall, a host of prisoner and immigration cases have been affected by the new laws.

One of the more high profile of these involves the 10-year legal showdown with the US government of the Palestinian student group known as the L.A. 8. Last November, the former UCLA students were all smiles after a second set of federal judges, including one appointed by President Reagan, agreed that US officials tried to deport the students not because they did anything illegal - but because they printed and distributed unpopular political views. Both the federal district court in Los Angeles, and the Ninth US Court of Appeals in San Francisco, said US officials could not deport the seven Palestinians and one Kenyan for their exercise of free speech.

But on Dec. 16, the L.A. 8 will face a Justice Department motion to dismiss the earlier rulings. The dismissal is based on the new immigration bill's directive that INS actions can not be questioned by judges.

The outcome of that case, in turn, may affect some 100,000 to 400,000 illegal aliens now fighting deportation. That is the estimated number who say they were refused legal status, or were misinformed about their rights, in a government amnesty program beginning in 1986.

The new laws do keep intact prisoners' and immigrants' right to petition the US Supreme Court. But critics note that the high court seldom takes such cases.

Likewise, the standard for federal judges to obtain a consent decree to review prison conditions has been raised. Under the old rules, prison officials agreed to work with court appointed masters in exchange for not admitting guilt in cases such as overcrowded conditions or rape and brutality by prison guards. Under the new law, judges must reopen the case every two years to renew the master. In addition, prison officials must admit their culpability prior to the appointment of a master - a step considered highly unlikely.

Under the new habeas corpus laws enacted in the Effective Death Penalty and Antiterrorism bill last spring, the federal review of death penalty cases is reduced to one year. Federal courts also face tighter restrictions on reviewing the decisions of state courts. A Justice Department internal memo says that under the new standard of review, the state court must be shown to be "unreasonably wrong."

Judicial independence advocates feel betrayed that President Clinton, a Democrat, a lawyer, and former constitutional lawyer, has done so little. But a Justice Department official says the White House gave great attention to the recent legislation: "The Justice Department is interested in the independence of judges. But we are also interested in prosecuting. What [Attorney General Janet Reno] has attempted to do is balance these interests.

"The legislation was less than ideal," the official says. "But we had political considerations to weigh. We were heavily lobbied by all sides."